‘Treaty-making 101’ for Ministers, bloggers and lobbyists

For immediate release‘Treaty-making 101’ for Ministers,
bloggers and corporate lobbyists

“Recent
statements by politicians, corporate lobbyists and pro-TPP
commentators imply that Parliament gets the final say over
the Trans-Pacific Partnership agreement (TPPA). That shows
woeful ignorance of New Zealand’s treaty making
process”, says Auckland University law professor Jane
Kelsey.

“The Cabinet Manual could not be more
clear: “7.112: In New Zealand, the power to take treaty
action rests with the Executive.” In practice, that means
the Cabinet.

“Any claim that this is a democratic
process is disingenuous. Successive governments have blocked
changes to standing orders and legislation proposed by ACT
and the Greens that would have given Parliament a stronger
role in approving treaties. In both cases the Ministry of
Foreign Affairs and Trade vigorously and
successfullydefended its turf.”

The text is not
tabled in Parliament until it is signed, which means the
Cabinet has already formally indicated its commitment to
adopt the text. It is then referred to the foreign affairs,
defence and trade select committee, which is required to
report back within 15 sitting days, unless the government
extends the time.

Professor Kelsey called for a
reality check. “If the TPPA is completed it will be the
size of two telephone books. Very few people can provide a
comprehensive and informed submission within the available
time.”

“From past experience, the select
committee process is a cosmetic exercise anyway, because the
government has a majority. Even if it wanted to propose
changes, the committee has no power. The Cabinet can ratify
the treaty while the hearings are still proceeding, as
happened with New Zealand Thailand Closer
EconomicPartnership.”

Parliament might be invited
to vote on the TPPA, if the government majority agrees, but
the vote would be symbolic. Such votes were held on several
recent free trade agreements – with the assurance of a
bi-partisan National/Labour consensus. That consensus is no
longer guaranteed, given the Labour Party’s policy remit
adopted at the recent conference.

Even where
implementing legislation is required, Parliament could
refuse to pass the laws, but if the treaty were already
ratified New Zealand would then be in breach of its new
obligations. But the government could seek to bypass
legislation. Controversial changes to Pharmac, for example,
might be made by regulation.

“The sad truth is
that our elected representatives, and we as citizens, are
impotent to affect a process that the Cabinet effectively
controls from start to finish. Those who claim it is not,
from the Prime Minister down, are misleading thepublic
deliberately or otherwise.”

Explanation:

Past challenges to the effective exclusion of both
Parliament and the public from such decisions include
reviews of standing orders as well as private members bills
on International Treaties promoted first by Ken Shirley from
ACT and then by Keith Locke from the Greens in 2000.

The Cabinet manualspells out the powers and
process for entering into international treaties.Paragraph
7.112 states that “In New Zealand, the power to take
treaty action rests with the Executive.” In practice that
means the Cabinet.

Cabinet decides whether to enter
into negotiations, the negotiating mandate and any revisions
to it, and what trade-offs are made to conclude a deal.

Cabinet then approves the signing of the agreed text by
the Minister. This is a definitive step that binds the
government to act in good faith towards its negotiating
partners. The Cabinet manual makes it clear that by signing
an agreement the executive indicates an intention for New
Zealand to be bound to that text. This constitutes a
goodfaith obligation under international law.

Parliament does not get to see the completed text until
that stage. According to the Cabinet Manual, a signed TPPA
would then be presented to Parliament, accompanied by a
National Interest Analysis. These analyses have been widely
criticised during the standing orders reviews and
submissions on the International Treaties Bill for their
lack of independence and balance, because they are prepared
by the same Ministry ofForeign Affairs and Trade that
negotiated the agreement.

The treaty is then
referred to the foreign affairs, defence and trade select
committee, which has the discretion whether or not to seek
public submissions. But the select committee has no
substantive power. The Cabinet Manual (para 7.119) makes it
clear that the executive can move to ratify the TPPA while
the select committee process is still underway.

Specifically, the government cannot ratify the treaty
until the select committee has reported or 15 sitting days
have elapsed since it was presented to Parliament, whichever
is sooner. In other words, the maximum period for the select
committee to report on the bill is 15 days after it is
tabled. Within these 15 days submitters need to (a) access
the document, (b) analyse its technical detail across a
reported 29 chapters, (c) write an accurate and detailed
submission, and (d) appear at a hearing before the select
committee, and for the committee to prepare a considered
report.

While the government can grant an
extension, and has done so in the past, the Cabinet controls
that decision and how long an extension would be.

The committee reports back toParliament. But Parliament
has no right to debate the treaty. The House maydecide to do
so – which means the government majority agrees.

Parliament’s only guaranteed role would be to
implement any legislation that is needed to bring New
Zealand into compliance with the TPPA. Under the Cabinet
manual, that legislation is only introduced after the time
for the select committee to report has expired, by which
time the Cabinet could have ratified the treaty.

There is norequirement that the legislative
changes that are needed for New Zealand to comply with the
TPPA have been approved by Parliament before the treaty is
ratified. If Parliament failed to pass the necessary laws,
the ratified treaty would remain binding – and New Zealand
would be in breach of its new obligations. If the changes
can be achieved through regulation or administrative
actions, Parliament would noteven play that role.

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